Kagan And “Diversity”

The Washington Post reports this morning that “black activists” (you know, Al Sharpton, the NAACP, etc.) are “dismayed that no African American woman has reached President Obama’s short list in two searches” for Supreme Court justices, and Kagan’s tenure at Harvard, which they see as “lacking in racial inclusion,” has “served to irritate them further.”

Because of all this irritation, the Post reports, the White House “rushed Tuesday to allay” these concerns, insisting that Kagan is, too, “racially sensitive.” Not hiring any blacks was not really her call, it insists (she didn’t have “final say”), and she did a number of “diversity”-enhancing steps.

“But,” as Roger Clegg incisively points out,

providing this reassurance is a tricky enterprise for the administration, since for the civil-rights groups in question a commitment to diversity requires a willingness to discriminate on the basis of race, ethnicity, and sex in order to reach politically correct results (i.e., quotas). And if, as dean and as solicitor general, a lawyer like Kagan had this commitment, one of two things must be true: (a) She thinks such discrimination is perfectly legal, or (b) she knows it isn’t legal but is willing to break the law. If the answer is (b), then she is ethically unfit to be a justice; if the answer is (a), then it follows she will be willing to uphold such discrimination as a justice.

Here’s a thought: why doesn’t some bold, fearless Senator ask Ms. Kagan to discuss her views of the the propriety of the state favoring some and disfavoring others on the basis of race. Someone who has described confirmation hearings as “a vapid and hollow charade,” as “an embarrassment,” because “senators today do not insist that any nominee reveal what kind of Justice she would make, by disclosing her views on important legal issues,” could hardly refuse to answer.

Say What?